1 Wednesday, 9 January 2002
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 10.04 a.m.
5 JUDGE AGIUS: Good morning. Please be seated. Would the
6 registrar call the case, please.
7 THE REGISTRAR: Good morning, Your Honour. This is case number
8 IT-94-2-PT, the Prosecutor versus Dragan Nikolic.
9 JUDGE AGIUS: [Microphone not activated] Could someone bring the
10 accused into the courtroom, please.
11 THE INTERPRETER: Microphone, please.
12 [The accused entered court]
13 JUDGE AGIUS: So good morning, everybody. Before we start, let me
14 say hello to everyone, welcome you here. I -- my name is Carmen Agius. I
15 come from Malta, and I have been appointed as the Trial Judge for this
17 Before I proceed, I would like a confirmation from the Defendant
18 that he understands -- he is hearing the proceedings in a language which
19 he understands. There is a problem with the --
20 MR. MORRISON: Yes. Howard Morrison for the Defendant. I think
21 he's just receiving --
22 JUDGE AGIUS: Can you hear me? No.
23 So I'll repeat the question. Mr. Nikolic, can you hear me?
24 THE ACCUSED: [No interpretation]
25 JUDGE AGIUS: So before I proceed, I would like to know from you
1 whether you can hear what is being said in a language that you can
2 understand. Okay. So for your benefit, I will just repeat very briefly
3 what I said before. I introduced myself. My name is Carmen Agius. I
4 come from Malta, and I am the Trial Judge in this case. I also want to
5 welcome everyone and look forward to cooperating with both the Prosecution
6 and the Defence in this case.
7 Can you still hear me and follow what I am saying?
8 THE ACCUSED: [No interpretation]
9 JUDGE AGIUS: I'd like to know now who is representing who.
11 MR. YAPA: May it please, Your Honour. I'm Upawansa Yapa appearing for
12 the Prosecution, with Ms. Patricia Sellers and Mr. William Smith.
13 Mr. David Leese, is the case manager.
14 JUDGE AGIUS: And on the Defence side?
15 MR. MORRISON: Your Honour, yes, Howard Morrison for the
16 Defendant. May I repeat, we are in reverse Your Honour's greeting and
17 welcome Your Honour to The Hague and this Tribunal and hope that you have
18 a fulfilling career here.
19 JUDGE AGIUS: Thank you.
20 And we can start. As you remember, the last Status Conference was
21 held on the 29th of August of last year, and this Status Conference is
22 being convened more or less in the time limit established by the Rules in
23 order to organise exchanges between the parties and take stock of the case
24 as it stands now, particularly in view of the latest developments, which I
25 will be referring to very shortly, and try to organise ourselves better in
1 preparation for the trial that will take place in due course.
2 As you know, and perhaps I would like confirmation of this from
3 Mr. Morrison, there has been a motion filed by the Prosecution to -- for
4 leave to amend the first amended indictment. I was given a copy of it
5 yesterday morning. I've gone through it. I have also more or less
6 compared it with the first amended indictment in preparation for today's
7 hearing. What I want to know first and foremost from you, Mr. Morrison,
8 is whether you have received a copy and whether you've had time to go
9 through it.
10 MR. MORRISON: Well, Your Honour, the position is this: I had a
11 conference with my learned friend for the Prosecution on the 21st of
12 December last, and a draft copy of the proposed new indictment was given
13 to me. That is substantially the same as the now-filed indictment. So I
14 have the period between the 21st of December and now to consider the --
15 the practicalities of it. But, of course, until it was filed in its final
16 form, which I received it yesterday, I haven't been able to go through it
17 with any more determination than that. Now, it has been filed, and before
18 I can go through it with Mr. Nikolic, it will have to be translated for
19 him. Otherwise, I'm going to have to go through it section by section
20 together with an interpreter, which would be a very unsatisfactory way of
21 dealing with it. It's far better that he has a translated copy, has the
22 opportunity to read it, and then for me to go through it once he's done
23 that. I've told him this morning of its existence, but he knows no more
24 about it than that. So I -- if it's necessary for Your Honour to make an
25 indication that the Registry should now provide translation services for
1 that indictment on the assumption that it is going to be the indictment in
2 the case, I'd -- I'd welcome Your Honour's, as it were, intervention in
3 that matter, because that needs to be done as fast as possible.
4 JUDGE AGIUS: I think we can do that undoubtedly, and I would
5 suppose that the -- from the Prosecution side, there's no objection to
7 MR. YAPA: Your Honour, we have no objection, and from what I
8 understand, it is being translated at the moment.
9 JUDGE AGIUS: Yes.
10 MR. YAPA: So hopefully we will get a copy soon.
11 JUDGE AGIUS: Okay. So I don't even need to make an order to that
12 because I take it that it will be ready and handed over as soon as
13 possible. Yeah.
14 MR. MORRISON: In which case, may I formally say, so there's no
15 doubt, that I not only have no objection to the amended indictment, I
16 welcome it. This is an amendment that the Defence has been pursuing for
17 some time. And may I, without embarrassing him, congratulate Mr. Upawansa
18 Yapa for having taken the case over relatively recently, produced it in a
19 very short space of time, bearing in mind it's now 20 months since the
20 Defendant was arrested and seven years since the original indictment. So
21 I think it's a world record. I've never heard of an indictment being
22 amended after seven years, but I'm grateful for it. As Your Honour can
23 see, it's reduced the counts from 80 to 8, it's a much more logical, and
24 with great respect to the original drafting, a much more logical and
25 concise document. It's going to be much easier to work with. And so
1 officially, I don't oppose the Prosecution's motion for leave to amend the
2 first amended indictment.
3 JUDGE AGIUS: In fact, I also should like to congratulate you,
4 Mr. Yapa, because when I first started taking cognisance of this case
5 about a month and a half ago, one of things that was really annoying me
6 was the fact that for months and months -- actually for over a year there
7 had been this promise from the Prosecution to reduce the number of counts
8 from 80-something-odd counts that it was to what it is now. So I -- I
9 take that as a clear sign from the Prosecution that it will be cooperating
10 as much as is needed in this case, to start and finish. It's a case that
11 should not take longer than one would expect -- reasonably expect it to
13 So having established that on the Defence side, there is no
14 opposition for the motion of the Prosecution for leave to amend the first
15 amended indictment, I think it's not the case of asking you, Mr. Morrison,
16 for any further comments on the substance of the indictment, because I
17 understood that you are reserving your position after you have consulted
18 your client.
19 MR. MORRISON: Your Honour, I must. So if Your Honour is granting
20 the Prosecution's leave and the first amended indictment is going to
21 now -- the amended first amended indictment is now going to be the
22 indictment in the case, may I then make the observation that of course
23 under the Rules of Procedure and Evidence, the defendant should be
24 rearraigned on the fresh indictment. But, of course, I would ask that
25 that not be done today because of the factors that I've already raised. I
1 will as soon as practicable indicate to the Court when the Defence is
2 ready for rearraignment. But that in itself need not slow the process
3 down. That can be done, as it were, along the way. For the moment -- for
4 all practical purposes, if I indicate that for today's hearing, we are
5 content to leave it at that, as far as the Defence is concerned, as far as
6 the indictment is concerned, if the Court is content to leave it on that
7 basis. I can't give Your Honour a time estimate, because I don't know
8 when the translated indictment is going to be in my hands. All I can say
9 is it will be done as soon as practicable after I have received it.
10 JUDGE AGIUS: Okay. Thank you.
11 [Trial Chamber and legal officer confer]
12 JUDGE AGIUS: So as far as this motion for leave to amend the
13 first amended indictment, I will be deciding it in the course of the next
14 few days, and in all probability within a week from today, and I will then
15 obviously do what -- what has been mentioned, in other words, appoint
16 another day as -- with the Rules anyway.
17 MR. MORRISON: I'm obliged.
18 JUDGE AGIUS: And of course you will have ample time to consult
19 your client and file any document that you deem fit.
20 MR. MORRISON: Well, I think the time scale then, is this, Your
21 Honour, that the -- because the new indictment contains the, as it were,
22 amended charges, there would now technically be another 30-day period
23 starting from the day that the indictment is endorse by Your Honour, not
24 from today, but from whatever day in the future that is going to be. We
25 have 30 days to file any fresh Rule 72 motions.
1 That brings me onto the existing Rule 72 motion, which is
2 pending. Such a motion was filed on the 29th of October, last. And Your
3 Honour will note the motion itself is not particularly voluminous, but it
4 contains huge amounts of material. There has been a response from the
5 Prosecution and a reply to that response, but the matter has not yet been
6 adjudicated. Once that original, if I may put it like that, Rule 72
7 motion has been determined by the Trial Chamber, the question then arises
8 as to whether or not there will be from either side any interlocutory
9 appeal. The chances are that there would be, whatever the determination
10 of the Trial Chamber and because it's a fundamental issue that's being
12 With the best will in the world, bearing the mind the realpolitik
13 of the speed of the Tribunal under these matters, that isn't going to
14 happen, I suggest, for between now and the end of February at the
15 earliest, with everybody working as expeditiously as possible. That
16 having been the case, there is then the question of a minimum six-week
17 period between the filing of a Prosecution pre-trial brief and a Pre-Trial
18 Conference. That's a minimum period. Bearing in mind the change in the
19 indictment and the perhaps rather different angle the Defence might have
20 to come from, and hitherto has been anticipated, it's more likely there
21 will be another two-month delay. Well, that will take us to the end of --
22 from the end of February to the end of April. So for anyone who is
23 interested in my observations, all I can say is that the assessment from
24 the Defence side is that this is a case that if it goes to trial will be
25 very unlikely to be ready for trial before May of this year. And that's
1 simply following the -- the Rules of Evidence and Procedure, let alone any
2 extraneous matters which may arise.
3 JUDGE AGIUS: So with regard to the motion on -- that you've just
4 referred to on the legality of the arrest, and as it affects all -- all
5 the proceedings in terms of Rule 72, the position is as follows: The
6 Tribunal is -- the Chamber is working on it. It's in the process of
7 elaborating a decision. Of course I understand -- fully understand that
8 it -- it is not affected by the fact that a motion for -- for leave to
9 amend the bill of indictment -- the indictment has been filed. That has
10 got absolutely nothing to do with it. So in other words, as I just wanted
11 to inform you, that the Tribunal will in due course decide this -- this
12 matter irrespective of the new bill of -- the new indictment and the
13 observations and documents that have to be filed in due course with regard
14 to that.
15 MR. MORRISON: I'm much obliged. And Your Honour will of course
16 be aware that the -- part of the reasoning behind the way in which the --
17 that motion was drafted and presented was because it was at the invitation
18 of Judge Hunt that the issues be determined in that way, rather than go
19 down the road that was followed in the case of Todorovic, which ended up
20 in an extremely long and time-consuming debate that never came to a
21 fruitful end.
22 JUDGE AGIUS: But you will understand, Mr. Morrison, that my
23 problem was that when I arrived here and tried to take stock of the -- of
24 the situation, this is not the only case I'm dealing with.
25 MR. MORRISON: Of course.
1 JUDGE AGIUS: I found two, three box files there with documents
2 related only and exclusively to this motion on the legality of the arrest.
3 And of course, with my legal stuff, I also tried to organise myself and
4 obtain the documentation that was filed in the Todorovic case, which as
5 you know ended up with -- with a plea bargaining or whatever, plea of
6 guilty -- guilt anyway, and that solved the whole matter.
7 This issue or the documentation that has been presented, both from
8 your side and particularly from the Prosecution side, is voluminous and it
9 is being studied, I mean, including all the copious references to orders
10 and articles and whatever, which -- some of which are very pertinent, some
11 of which are completely relevant, to tell you the truth.
12 MR. MORRISON: Well, it's the nature of the beast, Your Honour.
13 JUDGE AGIUS: Yes, exactly.
14 MR. MORRISON: One has to put in that which is germane, as well as
15 that which may not be --
16 JUDGE AGIUS: This is why it's taking time. You know, I mean,
17 it's taking time. I can assure you that my legal staff is working very
18 hard on it.
19 MR. MORRISON: Well, I know the time scale. I think it took me
20 200 hours to read all the documents myself, so --
21 JUDGE AGIUS: It is. It is voluminous. Unfortunately -- you
22 know, I mean -- and I would have appreciated more very serious attempt at
23 discriminating between some material and other. For example, there is a
24 reference to a decision of the European Court of Human Rights, which I
25 have gone through, and which I find very significant or very relevant to
1 the -- to the particulars of this case or even the legal issues involved.
2 And the same applies to several articles that have been filed. Anyway,
3 but still we have to go through that --
4 MR. MORRISON: Yes.
5 JUDGE AGIUS: -- and find -- find what's relevant, what's
6 important, and what's not. But I assure you that it's given -- being
7 given the utmost attention, and it is my intention to reduce the time span
8 between now and the beginning of the trial as much as I can. And I will
9 do my best to do that. Okay? Given that, as you know, new arrangements
10 are in place now, assuring that there will be six trials going on
11 simultaneously, some in the morning, some in the afternoon or evening, and
12 that has to be taken into consideration as well, because as long as these
13 six trials are still being heard, I mean, we might as well finish all the
14 preliminary proceedings, procedures, and we will still not be able to
15 start the trial. But in any case, more or less things are in plan, and --
16 and I think as far as your client's case is concerned, the situation is
17 pretty much in hand, you know.
18 MR. MORRISON: I'm much obliged for that observation. I wait with
19 interest to see how everybody copes with running six trials
21 JUDGE AGIUS: It's also -- when I said -- it's not just postures
22 you want. It's also wishful thinking sometimes. But let's be pragmatic
23 about it, and we'll see how it works.
24 I will be starting with a trial later on this month. Hopefully,
25 unless there would be fresh developments there, which would mean delaying
1 it further -- and this is not a trial that is going to last a few days or
2 a few weeks, as you know. You know, the situation is changed more or less
3 radically now that the number of counts have been reduced to eight.
4 When I was doing the comparative exercise between yesterday and
5 this morning, I think the time span needed for the -- for this trial from
6 beginning to end should be radically reduced. You know, I mean, because
7 there are, for example, with regard to the original first amended -- to
8 the first amended amendment -- indictment, several accusations related to
9 several persons have now been eliminated, and that could -- I mean, I'm
10 not in a position to confirm this, but that would presumably reduce the
11 number of witnesses considerably. You know, I mean, I don't know. You
12 are in a better position to make an assessment of that. And once you can
13 give us that assessment, then obviously we can plan better. So I'm sure
14 that that is the case. I mean, but I'm also sure that you probably know
15 much better than I do what the situation looks like. Okay?
16 Would you like to say something?
17 MR. YAPA: I'm thankful to Your Honour for the observations that
18 were made and also I should thank Your Honour and my learned friend for
19 the compliments made on the shortened indictment. As Your Honour was
20 pleased to explain a little while ago, the number of counts have been
21 reduced drastically, and there was good reason for us to do that. And the
22 list of witnesses also has been shortened to a great extent. So it would
23 mean, definitely, the time taken for the case will be shortened to a great
25 JUDGE AGIUS: How long do you expect it to last? A rough guess.
1 MR. YAPA: It is somewhat difficult to make an assessment, but I
2 would say for the Prosecution case, a maximum length of six weeks would be
4 JUDGE AGIUS: And Mr. Morrison, from the Defence side?
5 MR. MORRISON: Well --
6 JUDGE AGIUS: I understand that you first probably will have to
7 see what the list of -- new list of witnesses is.
8 MR. MORRISON: Well, that's something I'm going to have to
9 discuss, of course, with the OTP, to find out now exactly how they intend
10 to -- I can see what the indictment is. I can guess how it's going to be
11 prosecuted, but of course it is merely a guess at the moment.
12 The realistic position is that this trial, if it proceeded to
13 trial, on an eight-count indictment, I think would be completed within --
14 within a four-month period, probably less.
15 JUDGE AGIUS: That's good to know and good to hear.
16 Okay. May I now proceed -- something else. Is there anything
17 that you would like to raise with regard to Rule 66(A) or Rule 68?
18 MR. YAPA: Your Honour, at the moment, I do not have in respect of
19 the Status Conference that is on at present to make any observation. But
20 I should inform the Chamber and my learned friend that the -- the other
21 matters relating to the trial as are required in terms of the Rules are
22 being attended to. And it's a continuing process in respect of our
23 obligations, we are continuing to attend to that.
24 JUDGE AGIUS: Mr. Morrison?
25 MR. MORRISON: Your Honour, it doesn't always happen, but I've
1 been fortunate in this case with all counsel from the OTP, I have complete
2 confidence that the matters which should be disclosed will be disclosed
3 and I understand -- as Your Honour knows, in the U.K. as a barrister one
4 Prosecutes and defends; you don't just defend. So I spend in the U.K.
5 half my life prosecuting. I know the difficulties of prosecuting a case
6 and organising disclosure very well. I am content, of course, to leave it
7 in the hands of the serried ranks of the opposition.
8 JUDGE AGIUS: And before we adjourn, actually I would like to ask
9 Mr. Nikolic whether you would like to raise any issue, any matter relating
10 to your state of health or the condition of your detention.
11 MR. MORRISON: Your Honour, I've been through these matters with
12 my client prior to trial. The indication from him was that there was no
13 specific matter that he wished to bring to the Court's attention, unless
14 he's had a change of heart on that. No.
15 JUDGE AGIUS: Now, if there is any reason for such complaints
16 between now and the next Status Conference or the next hearing, whatever
17 kind of hearing that would be, please do make sure that that complaint
18 reaches me through your Defence counsel.
19 THE ACCUSED: [No audible response]
20 JUDGE AGIUS: So I think we can leave it at that. Recapitulating,
21 point one is the Tribunal will decide on the motion for leave to amend the
22 first-amended indictment, taking into consideration the non-opposition on
23 the part of the Defence as recorded in today's hearing. Secondly, that
24 the Tribunal will in due course decide the issue, the motion on the
25 illegality of the arrest to which the Defence made reference earlier on;
1 and following the decision by the Tribunal with regard to the motion to
2 amend -- for leave to amend the first-amended indictment, then obviously
3 the Rules -- the procedure laid down in the Rules will be observed and
4 there will be usual opportunities for the Defence to file whatever
5 documentation needs within the time limit established in the Rules -- in
6 the Rules. And we can leave it at that. And I adjourn the hearing.
7 Thank you.
8 --- Whereupon the Status Conference adjourned at
9 10.34 a.m.